JUDGMENT Wallis, J. 1. I agree with Munro J. that the extent of the defendants holding under the plaintiff is res judicata by reason of the decision in O.S. No. 430 of 1906. In that case the present plaintiff, who held a five years lease of the village from the registered landholder, sued the present defendant to recover rent for faslies 1314 and 1315 in the shape of Rajabagam, or landholders share of the produce, of certain jeroyati lands in the village in the occupation of the defendant. To enable the plaintiff to succeed it was necessary for him to show under Section 7 of the Rent Recovery Act 1865 that he had tendered a proper patta to the defendant for each fasli, or that it had been agreed to dispense with the tender. under Section 4 the patta had to contain the local description and extent of the land. The plaintiff pleaded that he had tendered a proper pattah for each fasli. The defendant denied the tenders and pleaded further that the pattas alleged to have been tendered were not proper instancing certain payments claimed. under Section 4 the patta had to contain the local description and extent of the land. The plaintiff pleaded that he had tendered a proper pattah for each fasli. The defendant denied the tenders and pleaded further that the pattas alleged to have been tendered were not proper instancing certain payments claimed. He pleaded further that " the extent of the defendants jeroyati land (that is, of the land in respect of which the plaintiff claimed rent) has been very much overrated." I think that must be taken as referring to the extent in the patta as well as to the extent in the plaint, which would merely reproduce it; and I think the District Munsif who tried the case so understood it, as in his careful summary of the written statement he makes no express mention of the plea as to the extent of the land and evidently treats it as part of the plea that the pattas tendered were improper; and I think it was also covered by the issue "whether the pattas so tendered are proper" and by the terms of the judgment on that issue, which is as follows; " The terms of the pattas Exhibit F do not contain any objectionable matter." If this view of the pleadings is correct, there is an end of the case, because the question of the extent of the defendants jeroyati holding was directly and substantially in issue in the previous suit and must be taken to have been heard and finally decided in the plaintiffs favour, as such a decision is necessarily involved in the decree passed in the plaintiffs favour, seeing that, if the decision had been the other way, it would under the Rent Recovery Act have been fatal to his suit which must have been dismissed on the ground that the patta was not a proper one. 2. In his judgment Sankaran Nair J. observes that a decree for rent does not necessarily involve the decision that a proper pattah has been tendered, as the parties may dispense with them; but where as here tender of a proper patta is alleged on the one side and denied on the other and there is no suggestion that tender has been dispensed with, it seems to me that the decree for rent does involve the decision that a proper patta has been tendered. 3. 3. Apart from any question as to the terms of the patta, it seems to me that the extent of the defendants holding of jeroyati land in the village was a matter directly and substantially in issue in the suit, as it was in respect of this extent that plaintiff was claiming Rajabagam, or landholders share of the produce, from the defendant; and that it was necessary for him to prove this extent to enable a decree to be given in his favour, even if there had been no plea in the written statement, as there was, that the extent had been overestimated. In these circumstances I think the decision on the 6th issue that the plaintiff was entitled to the Rajabagam claimed in the plaint necessarily involved a decision that the extent of the defendants jeroyati land in the village was as alleged in the plaint, because what he claimed was the Rajabagam of this extent and that this point must be taken to have been decided in the plaintiffs favour. 4. In either view the question of the extent of the defendants holding of jeroyati land in the village having been directly and substantially in issue and having been, as we must take it, heard and determined because essential to the decision of the suit, cannot be raised again in the present suit for the rent of fasli 1316 by the defendants setting up that he was all along in occupation of only 5 acres of jeroyati land in the village and not of the extent all along claimed by the plaintiff. 5. But even assuming that the propriety of the pattah was not questioned in the former suit on the ground that the extent of the lands was wrongly shown and that the extent was not otherwise questioned by the defendant, I think that these being good grounds of defence to the suit might and ought to have been raised and must be deemed to have been matters expressly and substantially in issue in the former suit by virtue of Explanation IV to Section 11 of the Civil Procedure Code. It seems to me that any ground of attack or defence which by virtue of the explanation is deemed to have been directly and substantially in issue in a suit must also be deemed to have been heard and finally decided adversely to the party who failed to raise it. The proposition that failure to raise grounds of attack or defences which might and ought to have been raised does not make such ground res judicata unless there is an express decision by the Court upon them appears to me to be wholly untenable. Courts of justice are not in the habit of deciding points not raised before them; and to say that the Explanation only takes effect when they happen to do so appears to me to defeat the policy of the section and to render the Explanation senseless as, held by the Allahabad High Court in Sri Gopal v. Pirthi Singh (1898) I.L.R. 20 A. 110, a decision confirmed on appeal in Sri Gopal v. Pirthi Singh (1902) I.L.R. 24 A. 429, by their Lordships of the Judicial Committee who thought it sufficient to say that the judgment of the High Court was clearly right and that the appeal on this point was unarguable. I do not therefore consider it necessary to refer to the earlier decisions of the Calcutta High Court on which Sankaran Nair J. relied and it is the more unnecessary to do so as they are very fully examined in the judgment of Sundara Aiyar J. The appeal must be allowed, the decrees of this Court and the lower appellate court reversed and the case remanded to the District Judge for disposal according to law. Costs will abide the event. Sundara Aiyar, J. 6. This is an appeal under Section 15 of the Letters Patent arising out of Second Appeal No. 640 of 1909. The original suit which led to the Second Appeal was instituted by a landlord for the recovery of rent from the defendants, his ryots, for the fasli year 1316. According to the plaintiffs case the defendants were in possession of about 14 acres of jeroyati lands under him liable to pay waram or rent in kind. The original suit which led to the Second Appeal was instituted by a landlord for the recovery of rent from the defendants, his ryots, for the fasli year 1316. According to the plaintiffs case the defendants were in possession of about 14 acres of jeroyati lands under him liable to pay waram or rent in kind. The 1st defendant, the undivided father of the 2nd defendant, contended that he held only 5 acres of jeroyati lands and that he held in addition 10 acres of Inam and 3 acres of cash-rent-paying lands and denied that any patta was tendered to him for the fasli in question as alleged by the plaintiff. The correctness of the patta alleged to have been tendered was also denied. The 7th issue framed by the Munsif raised the question " whether the alleged tendered patta was valid and binding on the defendant." The 8th issue was " whether the whole of the 14 acres of land mentioned in the plaint is defendants jeroyati as alleged by the plaintiff, or only 5 acres jeroyati and the rest Inam and cash-rent-paying land as alleged by the defendants." At the hearing a further question was raised whether the question of the propriety of the patta tendered was res judicata in consequence of the dicision of the Court in O.S. No. 430 of 1906 related to a suit for rent instituted by the plaintiff against the defendants for fasli 1314. The District Munsif held that the matter was not res judicata because the points in dispute were not raised in the previous suit, these points being the inclusion of Inams and of money-rent-paying lands as waram paying lands and the erroneous description of the lands for which the plaintiff is entitled to claim rent. On the merits he held that the patta tendered was not a proper one. He was of opinion that part of the lands included in the patta was Inam and was wrongly claimed by the plaintiff as jeroyati. He did not decide the question whether cash rent and not rent in kind was payable for part of the land. He apparently thought that the patta must be held to be incorrect in stating that waram was payable while cash rent was received till the end of Falsi 1313. He did not decide the question whether cash rent and not rent in kind was payable for part of the land. He apparently thought that the patta must be held to be incorrect in stating that waram was payable while cash rent was received till the end of Falsi 1313. The mistake complained of with regard to the description of the land was that the eastern boundary was described as the service Inam of the defendant, while in the patta for Faslis 1313, 1314, it was described merely as defendants Inam. This was held by the Munsif to be improper although he did not decide the question whether the description of the boundary of the defendants land as service Inam was in fact correct or not. He dismissed the plaintiffs suit. His judgment was confirmed on appeal by the District Judge who upheld the Munsifts view on the question of res judicata. The Judge observed on the question of the correctness of the patta as follows:--"Appellant does not seriously argue that the patta was a proper one." The plaintiff preferred a Second Appeal to this Court. The question argued in Second Appeal was that the propriety of the patta was res judicata by the judgment in O.S. No. 430 of 1906. The Appeal came on for hearing before Munro and Sankaran Nair, JJ. The learned Judges differed in their views, Munro, J. being of opinion that the plea of res judicata must be upheld, while Sankaran Nair, J. agreed with the opinion of the lower Courts that it should not be maintained. In the result, the Second Appeal was dismissed in accordance with the provisions of Section 98 (2) of the Civil Procedure Code. The present appeal is therefore substantially against the Judgment of Sankaran Nair, J. In the previous suit, O.S. No. 430 of 1906, the 1st issue was "whether the plaintiff tendered pattas to the 1st defendant for Faslis 1314 and 1315 and whether the pattas tendered are proper." The tender of patta was held to be proved. The finding on the question of its propriety was in these terms:--" The terms of the pattas, Exhibits E and F, do not contain any objectionable matter. The finding on the question of its propriety was in these terms:--" The terms of the pattas, Exhibits E and F, do not contain any objectionable matter. I accordingly find the 1st issue in the affirmative." In the written statement in that suit, marked as Exhibit C, in the present suit, paragraphs 8 and 9 took objections to the correctness of the patta. Paragraph 8 stated:--" The pattas alleged to have been tendered are not proper. The terms in paragraph 3 of the plaint are not mamool terms." The terms referred to related apparently to the giving of firewood, the payment of interest and the amount of road cess payable by the ryot. Paragraph 9 stated : " The extent of defendants jeroyati land has been very much over estimated by the plaintiff." So far as the written statement was concerned the details of the overstatement of the extent of the jeroyati land were not stated and no specific objection was taken to the statement that some portion of the lands was wrongly mentioned as liable to pay waram instead of cash rent. The objection in the present suit with regard to the description of the eastern boundary may be left out of account as it cannot be held to affect the plaintiffs right to the land in question. It is immaterial whether the defendants land which forms the eastern boundary was his service Inam or an Inam of a different character so far as the relations between the plaintiff and the defendants with regard to the plaint land are concerned. The District Munsif did not find that the description of it as service Inam was incorrect. It is immaterial whether the defendants land which forms the eastern boundary was his service Inam or an Inam of a different character so far as the relations between the plaintiff and the defendants with regard to the plaint land are concerned. The District Munsif did not find that the description of it as service Inam was incorrect. It does not appear to what points the evidence let in by the parties in the previous suit related with respect to the correctness of the patta and the Munsifs finding throws no further light as it is expressed in general words " the terms do not contain any objectionable matter." The appellants contention is that the defendants who set up that a proper patta had not been tendered were bound to raise all objections that they could to the propriety of the patta and that the judgment in the previous suit must be taken to be an adjudication that the terms of the patta were correct in every respect and that therefore they cannot raise any objection to the propriety of the patta in this suit which they might have failed to urge in the previous suit. Except in the matter of the difference in the description of the eastern boundary which, in my opinion, may be neglected it is not stated that the terms of the patta tendered for Fasli 1316 were not similar to the patta for Fasli 1314 which was held to be a proper one in the previous suit. The District Munsif observes that the patta in question was virtually the same as that which was tendered for Fasli 1314. The correctness of this statement is not seriously disputed. Munro, J. observes:--" Had the issue in the previous suit relating to the correctness of the patta been found in the negative, the plaintiffs suit must have been dismissed. The District Munsif observes that the patta in question was virtually the same as that which was tendered for Fasli 1314. The correctness of this statement is not seriously disputed. Munro, J. observes:--" Had the issue in the previous suit relating to the correctness of the patta been found in the negative, the plaintiffs suit must have been dismissed. The finding in the previous suit that the pattas were proper i.e., that they were such as the defendants were bound to accept, was a finding that the relationship of landlord and tenant subsisted between the plaintiff and the defendants in respect of the land entered in the pattas and I do not think that the defendants can again be allowed to put the plaintiff to proof of his title." Sankaran Nair, J. held having regard to the general language of the District Munsifs finding in the previous suit that there was no explicit adjudication there of the questions now raised, viz., whether a portion of the lands was Inam or Jeroyati and whether another portion was liable to pay cash rent or waram. The learned Judge was further of opinion that as the suit related only to the rent for a particular year F. 1316 it did not necessarily require a decision as to the terms of the patta or the extent of the land for which rent was payable and that these questions are therefore not res judicata. 7. The decision of the question depends on the interpretation to be placed on Section 11 of the Civil Procedure Code which embodies the rule of res judicata. According to the section, the Court is forbidden to try " any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties." The rule applies subject to the other provisions of the section not only to a suit tried before but to an issue decided in a previous suit provided the matter directly and substantially in issue in the later suit was raised in the previous suit or in a substantial and direct issue in the previous suit. Explanation III lays down--" The matter above referred to must in the former suit have been alleged by one party and either denied or admitted expressly or impliedly by the other." An implied denial is as effective as an express one. Explanation IV says " Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 8. The appellant contends that with respect to any issue in the former suit the parties were bound to put forward all grounds of attack or defence material for the decision of the issue and will be deemed to have done so even if they failed to do so in fact; that the propriety of the patta was directly and substantially in issue in the previous suit and that both the plaintiff and the defendants were bound to put forward every matter involved in the question of the correctness of the patta and that the decision that the patta was a proper one must be taken to be a decision that there was no valid objection of any sort to it; and that the defendants cannot now be permitted to raise any matter relating to the propriety of the patta which he might have failed to raise before. I am of opinion that these contentions must be upheld. The learned Counsel for the respondent rested himself on the arguments contained in the Judgment of Sankamn Nair, J. and did not elucidate the points any further. It becomes therefore necessary to examine the arguments contained in the Judgment of that learned Judge. He lays down the following propositions as I understand his Judgment: (1) The scope of the rule of res judicata as limited by the words directly and substantially in issue is not confined to the relief granted by the former suit or to the property which was the subject matter therein. He lays down the following propositions as I understand his Judgment: (1) The scope of the rule of res judicata as limited by the words directly and substantially in issue is not confined to the relief granted by the former suit or to the property which was the subject matter therein. (2) The decision on a matter not essential for the relief finally granted in the former case, or which did not form one of the grounds for the decision itself, cannot be said to have been directly and substantially in issue; but, where the decision on a question was essential to the relief granted or the decree passed, or where it formed the groundwork of the decision, then the matter must be deemed to have been directly and substantially in issue in the suit The difference between issues collateral and direct depends upon whether it was possible to pass the decree without any finding upon the particular issue. (3) With regard to the relief granted in a suit, the decree may render it necessary to imply a decision on a question not expressly decided, but with regard to issues no implication is necessary but we ought to have a clear decision to create a bar. The application of the latter part of the rule would of course be to cases where the subject matter of the two suits is different. (4) Explanation (IV) does not dispense with the necessity of a finding upon a matter which might and ought to have been made a ground of defence or attack in the former suit unless that matter must be taken to have been involved in the actual decree passed in the case. (5) It is not enough to make the matter of an issue res judicata that the decision of it in a different manner would be inconsistent with the decree in the previous case as such determination would not affect the actual decree passed in that case for the rent for fasli 1314. (6) A decree for rent does not necessarily involve the decision that a proper patta has been tendered. 9. If therefore as a fact that question was not decided in the previous suit, we are not bound to imply that it was so decided. 10. (6) A decree for rent does not necessarily involve the decision that a proper patta has been tendered. 9. If therefore as a fact that question was not decided in the previous suit, we are not bound to imply that it was so decided. 10. Now Section 11 of the Civil Procedure Code requires that the matter or issue should have been heard and finally decided by such Court. It does not say that it should have been decided in explicit terms. It cannot be doubted that if an adjudication on a matter is necessarily involved in the decision in a prior suit, the section must be understood to lay down that it must be taken to have been heard and finally decided. Sanlcaran Nair, J. admits that the principle of an implied decision must be adopted so far as whatever is required by decree in the previous suit is concerned. But he lays down that it is not applicable with regard to issues. He does not say how then the judgment in a suit is to be understood. No such distinction is warranted by the language of the section. The suit and an issue put forward for trial in the second suit are treated on exactly the same footing in the section and the test of res judicata with regard to each is whether the matter directly and substantially in issue in the later suit was the matter directly and substantially in issue in the suit or in an issue in the earlier suit. The word " issue" in the expression " suit or issue" must be distinguished from the use of the words in issue in the expression "the matter directly and substantially in issue." The latter expression as already stated is made applicable to both the later suit and an issue raised in it." Directly and substantially in issue "obviously means" directly and substantially in question, which would include everything necessarily involved "whether that expression is applied to the suit itself or an issue in it. This has to be borne in mind in interpreting explanation IV also. It speaks of "any matter which might and ought to have been made ground of defence or attack in the former suit." The phrase "matter directly and substantially in issue" in the principal clause of the section is spoken of with reference to both suit and issue. This has to be borne in mind in interpreting explanation IV also. It speaks of "any matter which might and ought to have been made ground of defence or attack in the former suit." The phrase "matter directly and substantially in issue" in the principal clause of the section is spoken of with reference to both suit and issue. Clearly therefore what ought to have been made ground of defence or attack with respect to any issue in the earlier suit must be taken to have been a matter directly and substantially in issue therein when the question is whether an issue in the earlier suit can be tried again in the later suit. Again in deciding whether any matter is res judicata, the question is, what is necessarily involved in the actual Judgment of the Court in the earlier suit, not what relief was granted by the decree, because it is the matter decided (expressly or by necessary implication) that becomes res judicata. It is desirable to illustrate by a concrete example. Suppose a suit is instituted for one of the instalments payable according to the terms of a bond. The defendant denies its genuineness and pleads also absence of consideration and issues are framed on both points. The Court passes a decree for the instalment but records no explicit finding on either of the issues. A suit is subsequently instituted in the same Court for a second instalment and the defendant raises the same pleas as in the earlier suit. The subject matter of the two suits is not the same and the dismissal of the second suit would not affect the actual decree passed in the earlier suit. Can it be contended that the issues may be tried again in the second suit? According to the learned Judge apparently they should be tried again. The executant of the bond, according to him, though he cannot seek to recover back the amount decreed against him in the earlier suit, may resist the second suit for the later instalment. The difference between issues collateral and direct, according to the learned Judge, depends upon " whether it was possible to pass the decree without any finding upon the particular issue. The difference between issues collateral and direct, according to the learned Judge, depends upon " whether it was possible to pass the decree without any finding upon the particular issue. I am unable to accept his position that though a finding might be necessary to pass the judgment in the previous suit, the issue should not be taken to have been decided (unless explicitly decided) if the result of the second suit would not be to reopen the actual decree in the previous suit. The result of such a position would be that the same issues may be re-opened again and again in the same court though such re-opening would be inconsistent with the decree and judgment in every one of the previous suits. According to the learned Judge such inconsistency is immaterial. The decision of the Privy Council in Amanat Bibi v. Imdad Husain (1888) L.R. 15 I.A. 106 is referred to in support of this position. There were two earlier proceedings, one, a suit to establish a sub-properietory right as against a talukdar, the other, a proceeding to recover the same property from the talukdar under the terms of a certain revenue circular on repaying to the talukdar the arrears of revenue which he had paid to the government. The third proceeding in which the plea of res judicata was raised was a suit to redeem a mortgage granted by the person who was plaintiff in the earlier proceeding. The Privy Council held that the third suit was not barred as res judicata because the cause of action was different. Their Lordships held that the cause of action to establish a sub-proprietory right was obviously different from that in a suit for redemption though the property sought to be recovered was the same. The Privy Council held that the third suit was not barred as res judicata because the cause of action was different. Their Lordships held that the cause of action to establish a sub-proprietory right was obviously different from that in a suit for redemption though the property sought to be recovered was the same. The question in issue, said their Lordships, was quite different in the two suits; and they interpreted the provisions in Section 7 of Act VIII of 1859 which enacted that " every suit shall include the whole of the claim arising out of the cause of action " as not requiring that " every suit shall include every cause of action or every claim which the party has, but only that every suit should include the whole of the claim arising out of the action on which the suit is brought." It is now a well-established proposition that, though the subject-matter of the litigation and the relief claimed may be the same, different suits may be maintained by a plaintiff if the cause of action in each suit be different. There were two stages in the second of the earlier proceedings. The first originated in an application by the plaintiff under a Revenue circular to recover the property. The Settlement Officer who made the inquiry found that the plaintiff had conveyed the property to the talukdar by a conditional sale which had become absolute in 1853 and that the plaintiff was further not entitled to recover the property as he had not repaid to the talukdar certain arrears of revenue paid by the latter which he was bound to repay before claiming to recover the property. Their Lordships held that this order under the special circular could not be treated as judicial proceedings at all. The plaintiff then had recourse to fresh proceedings on the ground that the payment of arrears by the talukdar must be treated as having been made on his account. The Settlement Officer then again decided that the property had been transferred to the talukdar by a conditional sale of the year 1853 which had become absolute. The plaintiff then had recourse to fresh proceedings on the ground that the payment of arrears by the talukdar must be treated as having been made on his account. The Settlement Officer then again decided that the property had been transferred to the talukdar by a conditional sale of the year 1853 which had become absolute. Their Lordships held that the question in those fresh proceedings must be taken to have been merely " whether the plaintiff was entitled to recover the property which had been transferred by the Government to the talukdar on repaying to the talukdar the arrears of revenue which he had paid to Government," that being according to their Lordships the cause of action on which the plaintiff then claimed to recover. The matter in issue in the suit before their Lordships, they said, was " the respondents right to redemption under the mortgage-deed of 1854. Their Lordships then observed, "It may be difficult to reconcile the position of the talukdar as mortgagee in 1854 with his position as absolute owner in 1853 under purchase from the mortgagor. But if it be established that the respondent was a mortgagor in 1854 with the right of redemption, why should he be barred merely because at an earlier date he may have had no right to the property at all?" This is the passage relied on by the learned Judge for the proposition that the decision of an issue in the earlier suit inconsistent with an issue in the later suit will not make the suit or issue in the later suit res judicata. I can find no such proposition laid down by the Privy Council. They did not regard the later suit as inconsistent with the decision in the former suit that there was a conditional mortgage of 1853 which, if it was in operation, had become absolute in 1853. Proceeding on the basis that the conditional mortgage had been established to be true, if the talukdar chose to take a mortgage in 1854 from the plaintiff and his subsequent holding was under that mortgage, their Lordships held that the mortgage of 1854 would furnish the plaintiff with a fresh cause of action and a plaintiff need not combine in the same suit all his causes of action, though both suits might be for the recovery of the same property. They did not say that in the later suit the execution of the conditional sale of 1853 or its having become absolute could be denied. The observation that it may be difficult to reconcile the position of the talukdar as mortgagee in 1854 with his position as absolute owner in 1853 under a purchase from the mortgagor meant no more than that it might appear to be improbable that a person who was absolute owner in 1853 would take a mortgage in 1854; but a mortgagee cannot deny the title of his mortgagor and if the talukdar chose to take a mortgage from the plaintiff in 1854 he could not say that the plaintiff did not obtain a fresh cause of action for redemption of that mortgage. On the other hand, in Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadur (1872) 12 B.L.R. 391 (P.C.) the Privy Council applied the rule of an implied decision of an issue by a former adjudication although the property in the two suits was different. The learned Judge seems to have been under the impression that in that case the decree in the later suit would re-open the decree in the earlier suit, but that was not the case, as the property in dispute in the two suits was different. It is of course necessary that in order that an issue may be res judicata the decision in the former suit must necessarily involve an adjudication in a particular way on the issue raised in the later suit and its adjudication in a contrary way in the later suit must be inconsistent with the adjudication which must be implied in the earlier suit. In one part of his judgment the learned Judge observes that where the decision on a question was essential to the relief granted, or where it formed the ground-work of the decision, then the matter must be deemed to have been directly and substantially in issue in the suit, but he afterwards restricts the scope of the second test to cases where the question was explicitly decided. For this restriction I can find no warrant either in principle or in the language of the section. 11. For this restriction I can find no warrant either in principle or in the language of the section. 11. The statement that a decision on a matter not essential for the relief finally granted cannot be said to have been directly and substantially in issue is unworkable in practice, where a suit is dismissed without any relief being granted. The test should really be whether the matter was essential for the decision in the earlier suit, not for the relief granted. The decision of a court proceeds on the matters put in contest by the parties and its adjudication cannot be understood without regard to the actual contest. It is impossible to understand it merely with regard to the decree. Suppose a suit for an instalment on a bond is dismissed, the defendants plea being that the bond is not genuine and that it is not supported by any consideraion. The court does not record any explicit findings on these points, either of which would lead to the dismissal of the suit. Suppose the plaintiff afterwards institutes a suit for another instalment and the defendant raises the same pleas. Can the plaintiff be permitted to say that the points should be tried again and he should be given a decree if both points are found in his favour? Sankaran Nair, J. concedes that the granting of the relief may be taken to involve the decision of whatever point is necessary to support the decree. But what points are to be taken as involved in the decree in the instance just put? How is it possible to decide a question of res judicata by a consideration of the relief alone which is granted and without a consideration of the judgment in the case and how is it possible to understand what the Court decides in the judgment without seeing what the contest between the parties was? The result of doing so would be to confine the doctrine of res judicata to the scope of the rule transit in rent judicatum (except where a matter directly and substantially in issue has been explicitly decided by the judgment in a former suit). Suppose in the illustration already put of a defendant denying both the genuineness and consideration of an instalment bond, the defendant in the second case admits the genuineness of the bond but denies only the passing of consideration for it. Suppose in the illustration already put of a defendant denying both the genuineness and consideration of an instalment bond, the defendant in the second case admits the genuineness of the bond but denies only the passing of consideration for it. If it is open to the Court in the later suit to proceed on the footing of the genuineness of the bond, the question would arise whether the matter as to consideration is res judicata by the former judgment. As no explicit findings on the points in contest were recorded in the judgment, the decision might have proceeded either on the ground that the bond was not genuine or that it was not supported by consideration, or on both grounds. It might be proper in such a case to hold that the previous judgment did not necessarily imply a decision on the question of consideration. Certainty is essential for the application of the rule of res judicata and the court would not prevent the reagitation of a matter where it is not certain that the previous decision proceeded on a particular ground. See Vaithilinga Mudaliar v. Ramachendra Naicker (1904) 14 M.L.J. 373. If a suit for an instalment is dismissed for default no matter would be res judicata in a claim for another instalment. If it is decreed ex parte, the genuineness of the bond and all questions as to its enforceability, so far as to justify a decree for the instalment would be res judicata in a suit for another instalment. The learned judge apparently proceeds on the view that for some reason the scope of the rule of res judicata with regard to issues should be restricted as far as possible and refers to the opinion of Stuart C.J. in Babu Lai v. Ishri Prasad Narain Singh (1880) I.L.R. 2 A. 582 and Mahammad Ismail v. Chatter Singh (1881) I.L.R. 4 A. 69 who regretted the application in this country of the principle of res judicata to the trial of issues and not merely to the subject-matter in previous suits. It is necessary to consider whether there are good grounds for such regret. It is necessary to consider whether there are good grounds for such regret. The rule was well established by the decisions of the Priviy Council.--see Krishna Behari Boy v. Brojeswari Chowdranee (1875) 2 I.A. 283, Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadur (1872) 12 B.L.R. 391, Soorjomonee Dayee v. Suddanund Mohapatter (1873) 12, B.L.R. 304, Pittapur Baja v. Buchi Sitayya (1885) I.L.R. 8 M. 219. Section 13 of Act X of 1877 and Section 11 of the present code made the expression " matter directly and substantially in issue " applicable both to suit and an issue in a suit. 12. The learned Judge holds that the proper terms of the patta to be tendered by the land-holder to the ryot could not be regarded as having necessarily been directly and substantially in issue in a suit for rent. Two decisions of the Privy Council are referred to in support of this position. The first of them is Misir Raghobardial v. Sheo Baksh Singh (1883) I.L.R. 9C. 439. In that case the plaintiff had previously instituted a suit for Rs. 1,665, the balance of interest due on a bond for Rs. 12,000 in a court not competent to try suits exceeding Rs. 5,000 in value. The defendant had pleaded that the bond was supported by consideration only to the extent of Rs. 4,790 and that the amount already paid by him for interest exceeded the interest due on the actual consideration that had passed. The defendants plea was upheld. The plaintiff subsequently instituted a suit for the principal and interest due on the bond in a court competent to try a suit of that value. The question was whether decision in the previous suit as to the amount of consideration that had passed for the bond was res judicata in the subsequent suit. Their Lordships held that it was not. The point was decided on the ground that the court that decided the previous suit was incompetent to try the later suit for principal and interest. The rule as to the necessity for the court trying the previous suit having concurrent jurisdiction to try the later suit had also been laid down by the decisions of the Privy Council under Act VIII of 1859, although the language of Section 2 of that Act did not in terms refer to that requisite. The rule as to the necessity for the court trying the previous suit having concurrent jurisdiction to try the later suit had also been laid down by the decisions of the Privy Council under Act VIII of 1859, although the language of Section 2 of that Act did not in terms refer to that requisite. Sir Richard Couch in pointing out that the rule already applied by the Privy Council while Act VIII of 1859 was in force was embodied in explicit terms in Act X of 1877 went on to observe that the issue as to consideration " was a collateral rather than a direct issue in the suit." He said the "plaintiff might have succeeded without having a finding upon it if he had proved an admission by the defendant that the sum claimed was due for interest, or had shown that the Rs. 2,475, (the sum alleged to have been paid for interest) had been expressly paid on account of the larger sum which he said the defendant owed for interest." This is immediately followed by the sentence " If the decision of the Assistant Commissioner is conclusive, he will, although he could not have tried the question in a suit on the bond, have bound the plaintiff as effectually as if he had jurisdiction to try that suit. Their Lordships think that this was not intended and that by court of competent jurisdiction, Act X of 1877 means a court which has jurisdiction over the matter in the suqsequent suit in which the decision is used as conclusive, or in other words, a court of concurrent jurisdiction." It is clear to my mind that his Lordship in making the observation contained in the previous sentences was only dealing with the question of the necessity of concurrent jurisdiction in the court which tried the earlier suit and he used the expression " collateral in the sense of not referring to the subject matter of the previous suit and that he did not mean that it was not necessary for the decision of the suit on the issues raised between the parties on the pleadings in the case. The observation was made with reference to the principle that the judgment of a court not having jurisdiction to try the later suit would not be res judicata on any issue in the earlier suit but only with respect to the actual subject matter of the previous suit. In Run Bahadur Singh v. Lucho Koer (1885) I.L.R. 11 C. 301 the decision in Misir Baghobardial v. Sheo Baksh Singh (1883) I.L.R. 9C. 439 was treated as an authority only on the question that the adjudication of a Court not having concurrent jurisdiction with that trying the later suit would not make the decision of an issue res judicata. Both Misir Raghobardial v. Sheo Baksh Singh (1883) I.L.R. 9C. 439 and Run Bahadur Singh v. Lucho Koer (1885) I.L.R. 11 C. 301 on the other hand proceed on the assumption that if there had been concurrence of jurisdiction in the two courts the finding on an issue in the earlier suit would have given rise to a successful plea of res judicata. It would appear that in the Duchess of Kingstons case which was referred to by Sir Richard Couch in the judgment in Misir Raghobardial v. Sheo Baksh Singh (1883) I.L.R. 9 C. 439 the expression direct issue as opposed to a collateral one was used in the sense of an issue directly determining the subject matter of the previous proceedings and not in the sense in which it is obviously used in the Indian statute. There is in my opinion no foundation at all for making a distinction between an explicit decision and an implied decision of an issue in the application of the doctrine of res judicata, provided the matter raised in the issue was directly and substantially in issue in the earlier suit. If the decision was not sufficiently explicit that would no doubt furnish the party affected by it in the earlier suit a good ground for appeal against the decision just as any other error or imperfection would do, but the defect in the finding is not one that can be collaterally attacked in the later suit. If the decision was not sufficiently explicit that would no doubt furnish the party affected by it in the earlier suit a good ground for appeal against the decision just as any other error or imperfection would do, but the defect in the finding is not one that can be collaterally attacked in the later suit. The same observation would apply even if an issue regarding a matter directly and substantially in issue in the former suit was not clearly raised or not raised at all provided the matter is such that it must be taken to have been decided in the earlier suit, that is, provided the judgment would not be sustainable unless the matter be taken to have been decided. Mr. Justice Sankaran Nair holds that explanation IV which states that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit does not qualify the statement in the principal clause that the matter in issue should have been heard and finally decided by such court. It is of course true that the matter should have been decided in contemplation of law but if, as the learned Judge concedes, it is sufficient if the matter must be taken to have been decided by necessary implication so far as the subject matter of the suit and anything involved in the decree itself are concerned, what reason is there for putting a different construction on the same words as applied to the decision of an issue? And if so far as what is involved in the decree is concerned any matter which might and ought to have been made ground of defence or attack must be taken to have been decided, there is in my opinion equally no reason for not applying the same principle with respect to a matter directly and substantially in issue in an issue in the previous suit. As I have already observed the language of explanation IV is equally applicable both to the previous suit itself and to an issue in the suit. As I have already observed the language of explanation IV is equally applicable both to the previous suit itself and to an issue in the suit. What use is there in enacting that what ought to have been made ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in that suit if the matter is not also to be taken to have been decided in the previous suit? What was not made ground of defence or attack could not have been expressly decided. The explanation would therefore be objectless if a decision also is not to be implied and made the ground of estoppel with respect to what is impliedly to be regarded as having been directly and substantially in issue. At any rate the logical result of the respondents position must be to make an explicit decision equally necessary with respect to a ground of attack or defence not having been urged with regard to a matter involved in the decree itself in the previous suit. The learned Judges position is no doubt supported by several decisions in the Cal